Foreword: What's So Wicked About Lochner?

Abstract:     
In this brief Foreword to a forthcoming symposium on Lochner v. New York, I ask the question, What's So Wicked About Lochner? Modern Progressives cannot complain about its protection of so-called substantive due process, since they favor just that. Nor can they claim that Lochner violates the original meaning of the Fourteenth Amendment, since these legal analysts by and large reject originalism altogether. This leaves only today's judicial conservatives to adhere to a purified Roosevelt New Deal jurisprudence of disdain for Lochner.

My answer is that Lochner is objectionable precisely because its reliance on the Due Process Clause perpetuated the serious misinterpretation of the Fourteenth Amendment established by the 5-4 decision in The Slaughter-House Cases. While Lochner's use of a presumption in favor of the liberty of citizens is basically sound - however well it may have been applied in the actual case - its reliance on the Due Process Clause, rather than on the Privileges or Immunities Clause, undermined the legitimacy of its method. I then offer the outline of an approach to Section 1 of the Fourteenth Amendment that gives a distinct meaning to each of its four Constitution-altering clauses.

Keywords: Lochner, due process, substantive due process, Fourteenth Amendment, original meaning, originalism, Due Process Clause, Privileges or Immunities Clause, Constitution

JEL Classifications: K39

Accepted Paper Series